Dlalisa and Others v City of Ekurhuleni Metropolitan Council and Another (2018/20993) [2025] ZAGPJHC 849 (28 October 2025)

begin wrapper begin container begin header begin slogan-floater end slogan-floater - About SAFLII About SAFLII - Databases Databases - Search Search - Terms of Use Terms of Use - RSS Feeds RSS Feeds end header begin main begin center # South Africa: South Gauteng High Court, Johannesburg South Africa: South Gauteng High Court, Johannesburg You are here: SAFLII >> Databases >> South Africa: South Gauteng High Court, Johannesburg >> 2025 >> [2025] ZAGPJHC 849 | Noteup | LawCite sino index ## Dlalisa and Others v City of Ekurhuleni Metropolitan Council and Another (2018/20993) [2025] ZAGPJHC 849 (28 October 2025) Dlalisa and Others v City of Ekurhuleni Metropolitan Council and Another (2018/20993) [2025] ZAGPJHC 849 (28 October 2025) Download original files PDF format RTF format make_database: source=/home/saflii//raw/ZAGPJHC/Data/2025_849.html sino date 28 October 2025 FLYNOTES: CIVIL PROCEDURE – Striking out – Discovery – Failure to comply – Unsigned affidavit had no legal effect – Signed version lacked essential details – Sequence of events indicated a deliberate attempt to delay compliance – Frustrated the administration of justice and prejudiced applicants’ ability to prepare for trial – Persistent non-compliance with discovery notice and subsequent order rendered a fair trial impossible – Striking out was appropriate to ensure progress and uphold integrity of judicial processes – Uniform Rule 35(3). REPUBLIC OF SOUTH AFRICA IN THE HIGH COURT OF SOUTH AFRICA GAUTENG DIVISION, JOHANNESBURG CASE NO: 2018/20993 (1)  REPORTABLE: YES / NO (2)  OF INTEREST TO OTHER JUDGES: YES /NO (3)  REVISED: NO 28 October 2025 In the matter between: DLALISA LERATO                                                                   1 ST APPLICANT NTSIBANDE VIKA REGGIE                                                     2 ND APPLICANT NTSIBANDE NOSIFISO PERSEVERENCE                            3 RD APPLICANT And CITY OF EKURHULENI METROPOLITAN COUNCIL            1 ST RESPONDENT UNKNOWN JOHANNESBURG METROPOLITAN POLICE OFFICER                                                                   2 ND RESPONDENT This Judgment was handed down electronically and by circulation to the parties’ legal representatives by way of email and shall be uploaded on caselines. The date for hand down is deemed to be on 28 October 2025. JUDGMENT KEKANA AJ Introduction [1]  On 28 October 2025, I gave an order in which I directed that: 1.1     The respondents are in default of the Court Order of the Honourable Keightley J dated 11 April 2023. 1.2      The applicants be granted an order striking out the defence of the respondents as contained in their plea. 1.3      The respondent be ordered to pay the costs of this application on Scale B. [2]  Before me was an interlocutory application, brought by the applicants in terms of Rule 35(7) [1] to strike out the respondents’ defence as contained in their plea on the ground that the respondents have failed to comply with a court order. [3]  The first respondent opposes the application on the basis that it has complied with the Rule 35(3) [2] notice and for that reason they have complied with the court order. Background [4]  On 30 January 2023, the applicants served a notice in terms of Rule 35(3) on the respondents, requesting that the respondents discover certain other documents which the applicants believe may be relevant to the main action, and are in the possession of the first respondent. The applicants extended the notice by an additional 5 (five) days in an attempt to ensure that the first respondent complies with the notice. [5]  On 6 April 2025, the first respondent served an unsigned discovery affidavit on the applicants which affidavit was denying possession of all the requested items. The applicant went ahead with its notice to compel on 11 April 2023 and from the hearing an order was made by my sister Keightley J in which it was ordered that: 1. The respondents (defendant in the main action)” are hereby ordered to comply with the rule 35(3) notice and to deliver the requested documents to “the applicant (plaintiff in the main action)” within 5 days of date of service of the order on the respondents’ attorneys of record; 2. Should the respondents be in default of paragraph 1 above, the applicant is granted leave to approach the Honourable Court with duly supplemented papers for an application to strike out the respondent’s pleaded defence; 3. Ordering the respondents to pay the costs of the application on a party-party scale. [3] Contentions by the parties [6]  The applicant submits that the contents of the late signed replying affidavit to the Rule 35(3) though late was the same as those in the unsigned affidavit, the unsigned affidavit was the only one they had on 11 April 2023, and it was brought to the attention of the court at the hearing of 11 April 2023. That even after the perusal of the unsigned affidavit the presiding Judge was still not convinced with the reply and granted the order. Therefore, the late submission of the signed version of the replying affidavit to the Rule 35(3) with same contents cannot be compliance with the court order granted by Keightley J on 11 April 2023. [7]  The applicant further submits that the respondents have the legal obligation to possess or at least know the whereabouts of the requested items since it is the only one that should possess this information. [8]  The respondents argues that the “ applicants failed to take the Court into their confidence during the hearing of 11 April 20235, and to inform the Court that the first respondent had in fact served a discovery affidavit on the applicants’ attorneys of record on 6 April 2023, albeit one which was not signed. In any event, the first respondent duly delivered a signed discovery affidavit under oath on the 11th April 2023, in compliance with the order of Honourable Justice Keightley of the same date” . [4] [9]  The respondents further argues that Rule 35(3) expressly requires that a party making disclosure “shall state their whereabouts, if known”, thereby acknowledging that there are circumstances in which the whereabouts of the requested documents or recordings may genuinely be unknown. Legal principle and analysis [10]  Rule 35 (3) of the Uniform Rules reads as follows: (3) if any party believes that there are, in addition to documents or tape recordings disclosed as aforesaid, other documents (including copies thereof) or tape recordings which may be relevant to any matter in question in the possession of any party thereto, the former may give notice to the latter requiring such party to make same available for inspection in accordance with subrule (6), or to state on oath within 10 days that such documents or tape recordings are not in such party’s possession, in which event the party making the disclosure shall state their whereabouts, if known. [11]  Rule 35(7) states that: “ If any party fails to give discovery as aforesaid or, having been served with a notice under subrule (6), omits to give notice of a time for inspection as aforesaid or fails to give inspection as required by that subrule, the party desiring discovery or inspection may apply to a court, which may order compliance with this rule and, failing such compliance, may dismiss the claim or strike out the defence”. [12]  From the evidence before me there was a Rule 35(3) notice served on the respondents. It is clear to me again that there was the late submission worse of an unsigned affidavit which by law cannot be characterised as compliance with the Rule 35(3) notice, hence the applicants launched an application to compel which was heard on 11 April 2023. It is so idiosyncratic for the respondents to belief that that submission of the unsigned replying affidavit was compliance to the Rule 35(3) notice let alone its contents, knowing and understanding the probative value in law of an unsigned affidavit, should have made the applicants not to go ahead with the application to compel as set down for hearing on 11 April 2023. [13]  The proceedings on 11 April 2023 went on before the receipt of the signed replying affidavit. Since there was no compliance with the Rule 35(3) notice, the applicants were within the rights to proceed with the relief sought. Counsel for the applicants submitted that my sister Keightley J had sight of the unsigned replying affidavit to the Rule 35(3) notice, this submission was not disputed by the first respondent. Even after having sight to the unsigned replying affidavit, my sister Keightley J granted to order compelling the first respondent to comply with the applicant’s Rule 35(3) notice. [14]  Both counsels agreed that there was no difference as regards the content of the unsigned and the signed replying affidavit by the first respondent the provision of the signed would not have persuaded the court otherwise. Even after perusal of the unsigned replying affidavit, my sister Keightley J was not convinced and still saw it fit to grant the order compelling the respondent to provide the requested items. Since both parties agree that the content between the unsigned and the signed replying affidavit to the applicant’s Rule 35(3) was the same, conversely the late filling of the signed replying affidavit cannot be seen as compliance to the court order. [15]  From the sequence of events, the signed replying affidavit to the Rule 35(3) notice was signed on the same day the order was granted, there was no court order yet to comply to,  the late submission of the signed replying affidavit can only be interpreted as the late attempt by the first respondent to comply with applicant’s Rule 35(3) notice but most definitely not the court order. Maybe attempt by the first respondent to prevent the applicant from obtaining a court order It will be misplaced for the first respondent to use or rely on the late filling of the signed replying affidavit on 11 April 2023 as compliance with the court order granted on 11 April 2023. [16]  I will now turn to the character of the signed replying affidavit to the applicant “defendant’s reply to the plaintiff’s Rule 35(3) notice”. It is not worth the paper written on in that the person deposing affidavit does not state his or her identity, it is not clear whether he or she is male or female, neither does he or she state his or her position in the municipality. It is only when one state his or her position that one can accept that the deponent would have personal knowledge of the facts and therefore duly authorised to depose such an affidavit. What is so disturbing is that nowhere does the deponent state that he or she is employed by the municipality. Upon perusal of the said replying affidavit, there is nothing that links the deponent with the municipality. [5] [17]  The affidavit is deposed by one Refiloe Sefano whose identity and capacity is not stated, absent his or her identity and capacity it remains problematic if he or she is even the right person to have knowledge of the items so requested nor duly authorised to depose the affidavit. Upon perusal of the said affidavit, the conclusion is strong that it was a cut and paste in that in all 7 (seven) items requested, the wording is the same “ The Defendants are not in possession of a document entitled ” . Again, upon perusal of the affidavit and the items requested, some items requested could be from different divisions within the municipality , there are items that deals with armoury while others deal with disciplinary processes that are expected to be from the human resources department, but the deponent uses the same phrase to responds to all items requested. The one and the same person appears Refiloe Sefano appears to have knowledge of all these items from different departments. [18]  It cannot be correct unless the person holds a strategic position within the municipality enabling him or her to have knowledge about all the items. It can only be so if holds such a strategic position that he or she can be duly authorised to depose a Rule 35(3) replying affidavit that is seen to be requesting this number of items. This capacity is so important that it must be stated in the affidavit for one to can conclude that the deponent is duly authorised to depose such an affidavit. [19]  It is common cause that anything that has to do with firearms, the control and management thereof is entrusted to a specific person, usually an armoury officer within the division or department. An armoury officer will be best placed to have knowledge on some of the items requested especially those that have to do with firearms. [20]  The office of the person deposing an affidavit is important. In the case of Barclays National Bank Ltd v Love it was stated that: “ The nature of the deponent's office in itself suggests very strongly that he would in the ordinary course of his duties acquire personal knowledge of the defendant's financial standing with the bank … [6] ” [21]  In the case of Shackleton Credit Management v Microzone Trading 88 “ There may be reasons connected with such a person's employment that would result in their acquiring sufficient personal knowledge of the facts to depose to an affidavit in support of an application for summary judgment . [7] [22]  What is emphasised when deposing an affidavit in both cases as referred to above is the link between a person employment, their position and the acquisition of personal knowledge of facts to depose an affidavit. In this instance nothing is said about Refiloe Sefano’s employment nor position, his or her position remains mysterious and so is the question whether he or she is expected have personal knowledge of facts and therefore duly authorised to depose the affidavit. [23]  As stated in paragraph 16 above, the absence of a link between the deponent and the municipality, was a frivolous attempt by the respondent to comply with the Rule 35(3) notice but to do it in the manner it did, creates nothing but a mockery out of a legitimate judicial process, this conduct is very contemptuous. demonstrates a lack of bona fides in the litigation process. The court interprets it as a tactic to delay, deliberate attempt to stall the administration of justice. [24]  The first respondent also understands the importance of this aspect, this is found in its supplementary heads of argument where it states that: “ This requires the deponent to provide the information enjoined by the Rule knowing that he or she is dealing with a solemn execution of an important document .” [8] The ‘ solemn execution of an important document ’ such as an affidavit requires a person to have personal knowledge of facts, hence the deponent’s position or capacity is important. [25]  After the hearing on the 11 April 2023 the first respondent was served with the court order and there was proof of service thereof. If the respondent was of the view that the order was erroneously granted since it is of the opinion that it had complied with the Rule 35(3) notice, then the first respondent should have made an application for rescission of the order by my sister Keightley J, particularly looking at the implications of paragraph 2 of the order. Absent the rescission of the order granted on 11 April 2023 as directed paragraph 2 will then take effect. [26]  The respondent’s contention that Rule 35(3) expressly requires that a party making disclosure “shall state their whereabouts, if known”, thereby acknowledging that there are circumstances in which the whereabouts of the requested documents or recordings may genuinely be unknown, cannot be sustained in instances where the respondents is the only person legal expected and obligated to have such requested items. In the instance where the respondents’ states that it is not to be in possession of those requested items, it must at least give reasons for the lack of possession thereof. Otherwise, it will be a very wrong precedence resulting in the unwitting opening up of floodgates to allow litigants who are duly and legally obliged to possess items like in this one where the respondents are the one and only one legally expected to possess the requested items to give such an uninspiring and dull reply to Rule 35(3) notices. It definitely cannot be enough, nor can it be said to be the object of Rule 35(3) for the respondents like in this instance to simply say it does not possess the items without providing any reason, or least an account of what happened for it not to be in possession of the items. Conclusion [27]  C ourt orders are not mere suggestions; they are binding. A party's wilful or persistent failure to comply with undermines the administration of justice, causes unnecessary delay, and prejudices the other party. The items being sought by the applicants through the Rule 35(3) notice were a central aspect of the dispute between the parties. The respondent's failure to comply with the Rule 35(3) notice and the subsequent court order has made a fair trial impossible and will gravely prejudice the applicant’s case. [28]  The first respondent's failure to comply with both the Rule 35(3) notice and the court order cannot be condoned. The court's authority is directly challenged when its specific order, made to remedy a prior procedural failure, is ignored worse in this case by an organ of state. This sequence of failures presents a very strong case for striking out the defence. As a result, the court is empowered to impose the ultimate sanction with striking out being the plausible sanction under the circumstances to ensure compliance and move the case forward. Order [29] In the premises, the following order is granted: 1.1     The respondents are in default of the Court Order of the Honourable Keightley J dated 11th April 2023. 1.2      The applicants be granted an order striking out the defence of the respondents as contained in their plea. 1.3      The respondent be ordered to pay the costs of this application on Scale B. KEKANA ND Acting Judge of the High Court APPEARANCES FOR THE APPLICANT Adv BM Khumalo Instructed by HC Makhubele Attorneys reception@hcmakhubeleinc.co.za 010 880 7267 FOR THE RESPONDENT Adv M Mpakanyane Instructed by Norton Rose Fullbright South Africa Inc Paul.cartwright@nortonrosefullbright.com / justice.subramoney@nortonrosefullbright.com 011 3013298 [1] Uniform Rules of Court. [2] Uniform Rules of Court. [3] Court Order by Keightley J (11 April 2023). [4] Para 9 of the respondents’ supplementary heads of argument. [5] Defendant’s reply to the Plaintiff’s Notice in terms of Rule 35(3). [6] 1975 (2) SA 514 (D) at 516H-517A. [7] 2010 (5) SA 112 (KZP). [8] Para 15 of the supplementary heads of arguments. sino noindex make_database footer start